Children with disabilities are being abused at the hands of their teachers denying them of a free and appropriate education to which they are legally entitled. Teachers have been using the word “discipline” loosely to justify abusive behavior toward students in their classroom. This article is divided into three sections. First, the article will discuss the current laws that govern special education and the use of discipline techniques in the classroom. Furthermore, this article will present legal claims students can bring against their teachers including federal claims as well as common law claims. In addition, various teacher ethics guidelines pertaining to the treatment of students will be presented. Second, this article will explain the many barriers a student faces when trying to receive a proper remedy for the harm they have endured. Last, the article proposes a variety of solutions to all barriers children face in getting an adequate education free from abuse.

What is the difference between teaching a child right from wrong and abusing him or her in the classroom? Sometimes, this line gets blurred. Teachers have been using the word “discipline” loosely to justify abusive behavior toward students in their classroom. Parents should be able to trust their children’s schools and teachers. Parents should be able to drop their children off at school and know that their children are in a safe learning environment. Unfortunately, “safety” is not always what children experience during their time at school. In fact, there is a growing concern related to students being abused by their teachers (Bullying Statistics, 2009). I have come across numerous incidents, through social media, news, and email, of students with disabilities being inappropriately treated by their teachers. These teachers attempt to justify their behavior by defining it as “discipline.”

In Katy, Texas, a teacher and her two aides forced students in their special education class to hold cotton balls filled with vinegar in their mouths as a form of discipline. A parent of one of the children witnessed this discipline practice. Parents of the students never consented to their children being subject to this form of “discipline.”

In Santa Fe, New Mexico, surveillance video showed a teacher physically dragging a student, who is blind, down the school hallway. The video of this incident became very popular on the Internet. The special education teacher grabbed the boy’s ankles and continued to drag him down the hallway. Then a second teacher grabbed his other ankle and proceeded to help. The teacher attempted to justify her behavior by explaining when she asked the boy to go to another classroom, the boy did not want to go, so she took him there. Both teachers are facing child abuse charges (Nobel, 2012).

One day, parents of 5-year-old Rose came to pick up their daughter from school in Lexington, Connecticut, after they received a call from teachers saying that their daughter was taking off her clothes. Prior to this call, parents had noticed that Rose was having unexplained tantrums at home. When they arrived at school that day to pick up their daughter, they found her in an empty mop closet, alone. The time they found her was the fifth time Rose had been in the closet that morning. The parents later found out that Rose had been in the closet almost daily for not following directions and other behavioral issues (Lichtenstein, 2012).

All children deserve to benefit from education in a safe learning environment, free from both physical and emotional abuse by their own teachers. Laws currently in place to protect children from such behavior should be improved to give students proper and prompt protections and remedies. In addition, current laws already in place holding teachers and school districts liable for misconduct need to be adequately enforced (Weber, 2002). Moreover, preventative procedures should be used so inappropriate discipline by teachers is eliminated or at minimum does not rise to the level, which denies children of an appropriate education.

This article is divided into three sections. Section I will discuss the current laws that govern special education and the use of discipline techniques in the classroom. This section will also discuss claims students can bring against their teachers including federal claims as well as common law claims. In addition, this section will discuss various teacher ethics guidelines. Section II of this article will explain the many barriers a student faces when trying to receive a proper remedy for the harm they have endured. Section III of this article will propose a variety of solutions to all barriers children face in getting an adequate education free from abuse.

SECTION I: LAWS, GUIDELINES, AND POLICIES IDEA

Denial of a Free Appropriate Public Education

Prior to 1975, the educational needs of students with disabilities were not being met to any degree (Individuals with Disabilities Education Act, §1400[c][2]). Students with disabilities were not receiving appropriate educational services (§1400[c][2][A]). Some students were excluded from the public school setting, and thus, not being educated a long side their peers (§1400[c][2][B]). Various disabilities were undiagnosed, and as a result, these children were being denied a successful education (§1400[c][2][C]). In addition, the availability of services was limited within the public school setting and therefore, families would be forced to find resources outside of the public school setting (§1400[c][2][D]). Congress passed the Education for All Handicapped Children Act in 1975 after the realization that the educational needs of children with disabilities were not being met (Osborne, 2001).

The Education for All Handicapped Children Act provided, for the first time, an array of educational opportunities for children with disabilities in the public school setting. The act in effect made it possible for students with disabilities to be integrated into the public education system. The act required a Free Appropriate Public Education (FAPE) for all students with disabilities, in the least restrictive environment. Since the enactment of The Education for All Handicapped Children Act, it has been amended a few times. One amendment changed the name to what we know the act to be today, the “Individuals with Disabilities Education Act” (IDEA). Although various amendments followed the enactment of IDEA, the most comprehensive changes were made in 1997 (Osborne, 2001). IDEA ‘97 put together all provisions governing discipline of students with disabilities (Skiba, 2002).

In 2004, President George W. Bush signed the reauthorization of the IDEA. The reauthorization put together the final requirements regarding discipline of students with disabilities (U.S. Department of Education, 2004). The importance of these provisions was to create a balance between the need for students to have a free and appropriate education while still allowing schools to discipline, appropriately, to ensure safety in schools (Skiba, 2002). As stated previously, the purpose of the IDEA is to ensure that all children with disabilities are provided with a “free appropriate public education” (Individuals with Dis - abilities Education Act, § 1400[d][1][A]). IDEA defines free and appropriate education as

special education and related services that have been provided at the public’s expense under public supervision and direction, and without charge; meet elementary school, or secondary school education in the State involved; and are provided in conformity with the individualized education program required under section 1414(d) of this title. (Individuals with Disabilities Education Act, 20 U.S.C. §1401[9])

Children with disabilities who are being inappropriately disciplined by their teachers may have a claim under the Individuals with Disabilities Education Act (Individuals with Disabilities Education Act, 20 U.S.C. §1400). Case law has interpreted the meaning and standard of an “appropriate” education. In determining whether a student has been denied a FAPE, one can look to the standard set forth by the U.S. Supreme Court in Board of Education v. Rowley. In the Rowley decision, the Supreme Court narrowly interpreted FAPE as the requirement to provide an education for students with disabilities obtain “some educational benefit” (Ferster, 2008). Moreover, the Supreme Court continued to explain the threshold, which IDEA required, mentioning “the basic floor of opportunity.” “The ‘basic floor of opportunity’ provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child” (Board of Education v. Rowley, 1982, p. 201). Further - more, Rowley set forth a two-part test for courts to apply in determining if a child could bring a claim for denial of FAPE (Ferster, 2008). First, one must establish the state did not comply with the procedures set forth in IDEA. Second, that the individualized education program was not reasonably calculated to enable the child to receive educational benefits (Board of Education v. Rowley, 1982; Ferster, 2008). If the court has established that both parts of this test have not been met, then the State has not fulfilled its obligations and the courts can require more (Board of Education v. Rowley, 1982). However, the limited scope set forth in Rowley seems to favor schools in claims that students bring for being denied FAPE. Some courts have interpreted the threshold of “appropriate education” to be one that provided “meaningful benefit” rather than “some benefit” (Ferster, 2008). It is my opinion that a student who is being disciplined in a way that shocks the conscience could not possibly be receiving “some,” “meaningful,” or any educational benefit.